New York Personal Injury Lawyer Issues Warning to School Nurses

NEW YORK MEDICAL MALPRACTICE LAWYER WARNS SCHOOL NURSES TO BEWARE OF LEGAL CONSEQUENCES FOR VACCINATING STUDENTS  WITHOUT PARENTAL CONSENT

NEW YORK, NY, PR WEB (Nov. 23) – The legal terms “assault” and “battery” pop up in city tabloids and cops and robbers TV programs all the time.  But lately these familiar phrases could just as easily apply to the actions of some New York City elementary schools, and their school nurses, in the wake of the current swine flu pandemic sweeping the country, according to Richard Gurfein, a New York medical malpractice attorney and senior partner in the New York personal injury law firm of Gurfein Douglas, LLP.

            “Despite claims,” Gurfein said, “by city health officials stressing the safety of the H1N1 vaccine, and the rapidly growing spread of the disease in city schools (hospitalizations for H1N1 have tripled in New York State in the past three weeks) the law requires parental consent before a school is permitted to give the swine flu vaccine to a student.”

            According to recent media reports, school nurses mistakenly gave the swine flu vaccine to two students whose parents didn’t sign up for it, including a Brooklyn girl with epilepsy who wound up in the hospital after getting the shot.

            “Any unlawful touching,” Gurfein explained, “or unauthorized administration of medical care not in an emergency situation is a battery, a legal term for an assault.  A school district cannot unilaterally administer vaccinations without parental consent, in writing.”

  Gurfein explained that on the issue of liability, it wouldn’t matter if the child got sick or not from the vaccination.

            “If there is a battery,” Gurfein said (medicine given to a child without an emergency situation, or parental consent), “by law the child is entitled to compensatory damages.

            “The measure of damages is another issue,” he added.  “If there was no ill effect from the vaccination, the damages would be relatively small.  If the child became ill, the amount of the damages would go up considerably.  Sadly, if the child dies, that wrongful death case would have almost no value because of existing arcane laws in New York State that place little monetary value on the life of a child.”

            Gurfein said there are exceptions as to when schools are allowed to intervene.  For example, in the event of an emergency, schools would be able to render medical care to the student since they are acting “in loco parentis” while a child is in their care.

            “But no court,” he said, “would ever accept the argument that vaccination without consent is an emergency, since the simple alternative is to refuse the child access to the school if parents don’t comply with the school’s wishes regarding vaccination.”

Vaccinating a child without parental consent, Gurfein explained, is a tort that has a one-year statute of limitations.  But because the school is part of the City, a parent only has 90 days from the time of the battery to file a Notice of Claim.  He said, ninety days does not mean three months.  It means ninety days.

            “Since a battery falls under the category of an ‘intentional tort’, “Gurfein explained, “it also cannot be insured against by the school, or the school nurse.  In these situations, the nurse who gave the child the shot, and the school district as her employer – assuming the nurse was acting within the course and scope of his or her employment – would have to pay any judgment.”

            Gurfein advises parents to remember that municipalities and their school districts are heavily protected against lawsuits.  He instructs parents of children who have been victims of a battery to contact a New York personal injury lawyer who is familiar with both negligence and medical malpractice claims.

            “Since a school,” Gurfein said, “is a department, or arm, of a municipality, a lawsuit must be commenced within a year and ninety days from the time of the battery, after having filed a timely Notice of Claim.

“Such a lawsuit,” he added, “typically takes longer to pursue than an average auto case because the City of New York has so many lawsuits it just doesn’t have the manpower to process all of them.  As with any other personal injury claim, the damages would be determined by a jury.  All costs to litigate the case are advanced by the lawyer, not the client.  The lawyer only gets those costs reimbursed, and compensated for his, or her, services, if he or she wins the case.”